Montez v. Czerniak

Decision Date20 March 2014
Docket Number(CC 97C12376,CA A130258,SC S059138).
Citation322 P.3d 487,355 Or. 1
PartiesMarco Antonio MONTEZ, Petitioner on Review, v. Stanley CZERNIAK, Superintendent, Oregon State Penitentiary, Respondent on Review.
CourtOregon Supreme Court


On review from the Court of Appeals.*

Daniel J. Casey, Portland, argued the cause and filed the briefs for petitioner on review.

Rolf C. Moan, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With him on the brief were Mary H. Williams, Deputy Attorney General, Anna M. Joyce, Solicitor General, Kathleen Cegla, Assistant Attorney General, and Pamela Walsh, Assistant Attorney General.

Before BALMER, Chief Justice, WALTERS and BALDWIN, Justices, and RIGGS and DURHAM, Senior Judges, Justices pro tempore.**


Petitioner was convicted of aggravated murder in 1988 and, following a 1992 penalty-phase retrial, was sentenced to death for that crime. Petitioner now seeks post-conviction relief, arguing that he received constitutionally inadequate assistance of counsel during that 1992 penalty-phase proceeding. The post-conviction court denied relief and the Court of Appeals affirmed that judgment. For the reasons set out below, we also affirm.


In 1987, petitioner and another man beat, raped, and sodomized a female victim in a Portland motel room. When the victim resisted, petitioner responded by forcing his fist into her anus, causing her to bleed profusely. The two men then tied the victim's arms behind her back and strangled her to death with a fabric noose that they had fashioned. After carrying her body to the bed, the pair doused her corpse in flammable liquid and ignited it. Firefighters discovered the body shortly thereafter when they responded to the resulting fire.

In 1988, a jury convicted petitioner of first-degree arson, abuse of a corpse, and three counts of aggravated murder. At the time of the penalty-phase proceedings that followed, ORS 163.150 (1987) required juries in aggravated murder cases to consider only three penalty-related issues: (1) whether the conduct that had killed the victim was undertaken deliberately and with a reasonable expectation that death would result; (2) whether there was a probability that the defendant would commit further acts of criminal violence so as to constitute a continuing threat to society; and (3) if warranted by the evidence, whether the conduct that had killed the victim was an unreasonable response to provocation on the victim's part. Following the presentation of evidence by the parties, the jury answered the applicable questions 1 in the affirmative, and the trial court sentenced petitioner to death.

On automatic and direct review, this court affirmed petitioner's convictions but reversed and remanded his death sentence. State v. Montez, 309 Or. 564, 789 P.2d 1352 (1990)( Montez I ). Citing its then-recent decision in State v. Wagner, 309 Or. 5, 786 P.2d 93,cert. den.,498 U.S. 879, 111 S.Ct. 212, 112 L.Ed.2d 171 (1990)( Wagner II ),2 the court held that the trial court had improperly denied petitioner's request for a jury instruction that would have allowed the jury to find that mitigating evidence justified imposition of a life sentence for petitioner rather than death. Montez I, 309 Or. at 609–10, 789 P.2d 1352.

On remand in 1992, a newly empanelled penalty-phase jury was instructed to answer the following questions:

“Was the conduct of the defendant that caused the death of the deceased committed deliberately and with a reasonable expectation that death would result?

“Is there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society?

“Should the defendant receive the death sentence[?]

State v. Montez, 324 Or. 343, 345–46, 927 P.2d 64 (1996), cert. den.,520 U.S. 1233, 117 S.Ct. 1830, 137 L.Ed.2d 1036 (1997)( Montez II ) (setting out penalty-phase jury instructions on retrial). As to the last question, the jury was instructed that

“you should answer this question no if you find that there is any aspect of the defendant's character or background or any circumstances of the offense that you believe would justify a sentence less than death.”

Id. at 346, 927 P.2d 64.

The jury was presented with extensive evidence regarding aggravating and mitigating factors related to petitioner's background, his character, and his crime. As petitioner summarizes in his brief, the state's case for demonstrating that petitioner should be sentenced to death focused on (1) the brutality exhibited by petitioner in his sexual assault, torture, and murder of the victim; (2) the fact that petitioner was on temporary release from prison when he committed those crimes; (3) the aggression petitioner demonstrated toward his peers as a child and the belligerent, deceitful, and manipulative behaviors he exhibited toward adults during that same period; (4) petitioner's lifetime of drug and alcohol abuse that was never successfully treated; (5) petitioner's criminal history, marked by numerous assaults in different states and his failure to comply with conditions of probation; (6) petitioner's altercations with various prison inmates; (7) 25 petitioner's alleged threats against his co-defendant; and (8) the fact that petitioner had been diagnosed with an anti-social personality disorder, a condition that increased the likelihood of his future dangerousness.

The mitigation case that petitioner's counsel presented in response focused on (1) the childhood neglect and abuse petitioner had endured at the hands of his natural and foster parents; (2) the post-traumatic stress disorder (PTSD) he suffered as a result, a condition that would be treatable in prison; (3) the absence of any counseling component in the substance abuse treatment programs made available to and used by petitioner; (4) the remorse petitioner expressed to others for his crime; (5) the difficult conditions of petitioner's confinement that, in turn, led to altercations with other prison inmates; (6) testimony from several inmates who indicated that they had instigated those altercations with petitioner; and (7) evidence of petitioner's efforts to better himself in prison and help others to do the same.

Following presentation of evidence at the penalty-phrase retrial, the jury answered the required questions in the affirmative and the trial court again imposed a death sentence. In 1996, this court affirmed that judgment in Montez II, 324 Or. 343, 927 P.2d 64.

In 1997, petitioner filed his first petition for post-conviction relief. Over the next seven years, the parties presented and litigated a plethora of pre-hearing issues and motions. During that period, petitioner amended his initial post-conviction petition nine times and ultimately raised numerous claims regarding the allegedly ineffective assistance of counsel he received during his 1992 penalty-phase retrial. Petitioner's hearing, in which he bore the burden of proving the facts alleged in his petition by a preponderance of the evidence, ORS 138.620(2), began in April 2004 and encompassed four days of testimony over a three-month period. The post-conviction court subsequently entered a judgment denying relief in October 2005.

Petitioner appealed that judgment. Following extensive briefing and oral argument, the Court of Appeals affirmed the post-conviction court's judgment in September 2010. This court allowed petitioner's subsequent petition for review.


Criminal defendants in aggravated murder cases have a constitutional right to counsel under Article I, section 11, of the Oregon Constitution and under the Sixth Amendment to the United States Constitution. Under both constitutions, “the defendant's right is not just to a lawyer in name only, but to a lawyer who provides adequate assistance.” State v. Smith, 339 Or. 515, 526, 123 P.3d 261 (2005). Those constitutional provisions require “adequate performance by counsel concerning the “functions of professional assistance which an accused person relies upon counsel to perform on his behalf.” Krummacher v. Gierloff, 290 Or. 867, 872, 627 P.2d 458 (1981); see also Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (Sixth Amendment right to counsel requires not just counsel, but “effective” counsel). This court, while interpreting and applying Article I, section 11, independently of the United States Supreme Court's interpretation of the Sixth Amendment, has nevertheless recognized that the standards for determining the adequacy of legal counsel under the state constitution are functionally equivalent to those for determining the effectiveness of 23 counsel under the federal constitution. See State v. Davis, 345 Or. 551, 579, 201 P.3d 185 (2008) (equating “effective” assistance with “adequate” assistance).3

In evaluating whether a defendant's lawyer has rendered inadequate assistance under the Oregon Constitution, our analysis ordinarily proceeds in two steps:

“First, we must determine whether petitioner demonstrated by a preponderance of the evidence that [his lawyer] failed to exercise reasonable professional skill and judgment. Second, if we conclude that petitioner met that burden, we further must determine whether he proved that counsel's failure had a tendency to affect the result of his trial.”

Lichau v. Baldwin, 333 Or. 350, 359, 39 P.3d 851 (2002) (internal citations omitted). In doing so, we “make every effort to evaluate a lawyer's conduct from the lawyer's perspective at the time, without the distorting effects of hindsight.” Id. at 360, 39 P.3d 851. We will not “second-guess a lawyer's tactical decisions in the name of the constitution unless those decisions reflect an absence or suspension of professional skill and judgment.” Gorham...

To continue reading

Request your trial
128 cases
  • Thompson v. Premo
    • United States
    • U.S. District Court — District of Oregon
    • 13 Mayo 2021
    ...counsel's perspective at the time that they made the decision—constituted a failure to exercise reasonable skill or judgment. Montez, 355 Or. at 7, 322 P.3d 487; Lichau, 333 Or. at 359-60, 39 P.3d 851. We conclude that he did not.Although petitioner correctly notes that Janzer had not reach......
  • Jackson v. Franke
    • United States
    • Oregon Supreme Court
    • 31 Marzo 2022
    ..." ‘the defendant's right is not just to a lawyer in name only, but to a lawyer who provides adequate assistance.’ " Montez v. Czerniak , 355 Or. 1, 6, 322 P.3d 487, adh'd to as modified on recons. , 355 Or. 598, 330 P.3d 595 (2014) (quoting State v. Smith , 339 Or. 515, 526, 123 P.3d 261 (2......
  • Antoine v. Taylor
    • United States
    • Oregon Supreme Court
    • 24 Noviembre 2021
    ...688, 699, 399 P.3d 431 (2017). Under most circumstances, the state and federal standards are "functionally equivalent." Montez v. Czerniak , 355 Or. 1, 6-7, 322 P.3d 487, adh'd to as modified on recons , 355 Or. 598, 330 P.3d 595 (2014). We begin with the first prong of the analysis, whethe......
  • Jackson v. Franke
    • United States
    • Oregon Court of Appeals
    • 3 Junio 2020
    ...prove both that his counsel's performance was constitutionally deficient and that he suffered prejudice as a result. Montez v. Czerniak , 355 Or. 1, 6-7, 322 P.3d 487 (2014).The superintendent moved for summary judgment on claim 16(j), and petitioner cross-moved for summary judgment on the ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT